RAM PRAKASH Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli ­cation has been filed with a prayer to quash the order dated 15.7.2008 passed by learned Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No. 3, Bulandshahr in F.R. No. 153 of 2008 (Criminal Case No. 1586 of 2008) arising out of police report submitted in case crime No. C -87/2008, P.S. Ahmadgarh, District Bulandshahr whereby the learned Magis ­trate concerned has rejected the final re ­port, accepted the protest petition and has taken the cognizance and has summoned the applicant to face the trial for the of ­fences punishable under sections 376, 511, 504 and 506 I.P.C.

(2.) THE facts in brief of this case are that an application under section 156 (3) of Cr.P.C. has been filed by O.P. No. 2 Smt. Ram Beti, the same was allowed and the, FIR of the case crime No. C -87 of 2008 un ­der sections 376, 511, 323, 504 and 506 I.P.C. has been registered at police station Ahmadgarh on 6.4.2008 at 12.30 p.m. The allegation against the applicant is that he had made an attempt to commit the rape with O.P. No. 2, he hurled the abuse and extended the threat of her life. The matter was investigated by the I.O. who submitted final - report dated 13.4.2008 in the Court of learned Magistrate concerned, the same Was protested by the O.P. No. 2 along with her affidavit. The affidavit of witness Pappu was also filed in the Court of learned Magistrate concerned in support of the prosecution version, thereafter, the learned Magistrate concerned rejected the final report and has taken the cognizance in exercise of the powers conferred under section 190(1) (b) Cr.P.C. and has summoned the applicant to face the trial for the offences punishable under sections 376, 511, 504 and 506 I.P.C. vide order dated 15.7.2008.

(3.) IT is contended by learned Counsel for die applicant that the FIR of this case has been lodged at very belated stage, the allegations made therein are false and frivolous which have been made for the purpose of harassment due to ulterior motive. During investigation, statement of G.P. No. 2 was recorded on 8.4.2008 and on tine same day, the statement of her husband Pappu was also recorded under section 161 Cr.P.C., after completing the investigation, the I.O. came to the conclusion that the applicant has not committed the alleged offence and there was no credible evidence in support of the allegation and the I.O. had recommended for initiating the pro ­ceedings under section 182 I.P.C. against the O.P. No. 2 also vide police report dated 13.4.2008, thereafter, the O.P. No. 2 filed a protest application along with her affidavit and the affidavit of witness Pappu in sup ­port of the prosecution, the learned Magis ­trate concerned has considered the police report as well as the affidavits of O.P. No. 2 and her husband Pappu for the purpose of taking the cognizance, which is illegal be ­cause it has been clearly mentioned by the learned Magistrate concerned in the im ­pugned order dated 15.7.2008 that the cognizance has been taken in exercise of powers conferred under section 191(1)(b) Cr.P.C. but in this provision, the cogni ­zance may be taken only on the basis of the police report whereas in the present case, the affidavits of first informant and witness Pappu have also been considered, it is ex ­traneous material, the same may not be considered in taking the cognizance in ex ­ercise of powers conferred under section 190(1)(b) Cr.P.C. The learned Magistrate has adopted a mixed procedure for taking the cognizance which is illegal. The learned Magistrate is empowered to take the cognizance only on the basis of police report or if not satisfied, it may be taken by treating the protest application as a complaint and thereafter recording the statement under sections 200 and 202 Cr.P.C. but in the pre ­sent case, the Magistrate concerned has not adopted the procedure prescribed by law for talking the cognizance. It is further contended that allegations made against the applicants during investigation are not substantiated by any cogent material. The allegation has been made only for the pur ­pose of harassment. It is further contended that a categorical allegation has been made in the protest petition that the statements of the first informant and her husband have not been correctly recorded by the police. In such circumstance, relying upon, the statement recorded under section 161 Cr.P.C. for the purpose of the trial is not proper and trial will be made on the basis of the statements which have not been ac ­cepted by the witnesses themselves. The learned Magistrate concerned has commit ­ted a manifest error in passing the impugned order, the same is illegal and it may be set aside.